• Section 198 and 497 of Cr.P.C

Under Section 198 and 497 of Cr.P.C, if the husband of the adulterer wife does not wish to file 497, then can any other person apart from the husband file 497 against the lover even if the husband tells the court that he does not want to file charges against the lover. Also who can be termed as 'Some person who had care of the woman'

(2) For the purpose of sub-section (1), no person other than the husband of the woman, 
shall be deemed to be aggrieved by any offence punishable under section 497 or section 
498 of the said Code:
Provided that in the absence of the husband, some person who had care of the woman on 
his behalf at the time when such offence was committed may, with the leave of the court, 
make a complaint on his behalf
Asked 2 years ago in Criminal Law from New Delhi, Delhi
no,
Rajeev Bari
Advocate, New Delhi
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adultry is offence againts husband,
Rajeev Bari
Advocate, New Delhi
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92 Consultations
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my pleasure
Rajeev Bari
Advocate, New Delhi
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92 Consultations
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you can have that from kaanoon.com site
Rajeev Bari
Advocate, New Delhi
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92 Consultations
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1. He can file an application before the Court praying leave for filing an application u/s497 of Cr.P.C. being her father, in absence of her husband,

2. What the husband will later on will not be known to the court while filing the said application.
Krishna Kishore Ganguly
Advocate, Kolkata
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1. There is no such act by which he can file an application before the court stating that he will not file any case on certain matter,

2. What will be his prayer from the Court in his said application? Not to admit someother person's application, if filed in future?
Krishna Kishore Ganguly
Advocate, Kolkata
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227 Consultations
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1. Your question was whether her father can file the said case or not,

2. The answer is yes, on the grounds mentioned above,

3. The husband can intervene in the matter with all his submissions  only after the case is filed, not before that.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
227 Consultations
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1. The husband can intervene and place his submissions,

2. Whether the Court will dismiss the 497 application or not, based on his submission,  can not be predicted now.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
227 Consultations
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contesting divorce on adultry is very difficult,even in recent supreme court judgement adultry can not be considered as cruelty
Rajeev Bari
Advocate, New Delhi
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92 Consultations
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1. Her father can file the said application & he will be heard. Her husband's filing divorce petition will not disentitle her father in filing the said application,

2. Why complicating the matter? Why not the couple file MCD to finish off the problem after just 6 months?
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
227 Consultations
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1. Answer has already been elaborated,

2. The case can be filed by her father which can be intervened by  her husband,

3. The committer of the adultery being you  can challenge the maintainibility of the application on the stated ground to be decided by the Judge but her husband can in no case file application to stop legal action to be taken by his wife's father, with whom she is now residing, against his wife's paramour.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
227 Consultations
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Dear its a serious matter Kindly hire an advocate who can completely understand your facts and can advise you accordingly.
Rajeev Bari
Advocate, New Delhi
1506 Answers
92 Consultations
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After going through all these facts u submitted it is firmly established that woman is a habitual cheater, she has developed an affair with u and  you have caught her in bed with  another man. How her father demanding dowry not cleared, if it is assumed that husband can interven during the proceeding u/s 497 Crpc, then  he can, but getting Divorce on Adultery  ground is to some extent requires  convincing  power.
Soumya Kundu
Advocate, Kolkata
87 Answers
0 Consultations
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Judgement of Gujrat High Court on adultryGujarat High CourtGujarat High CourtSureshchandra Vadilal Shah vs Shantilal Shankarlal And Anr. on 1 April, 1966Equivalent citations: 1968 CriLJ 117, (1967) GLR 290Author: N ShelatBench: A Bakshi, N ShelatJUDGMENTN.G. Shelat, J.1. This application is directed against an order passed on 31.1.1966 by Mr. R.N. Desai, Judicial Magistrate,First Glass, Palanpur in Criminal Case No. 613 of 1965 whereby the applicant-accused came to be committedunder Section 213 of the Criminal P.C., to the Court of Session at Palanpur in respect of the charges levelledagainst him under Sections 366, 497 and 498 of the Indian Penal Code.2. The opponent No. 1 was married with one Jayahen about 8 or 9 years ago, and they have four children. Theaccused-applicant was living in the same mohalla in Palanpur, where they were living, and it appears that theaccused developed some intimacy with Jayaben. He used to visit her house, even during the absence of herhusband, in spite of his being asked not to visit his house. On the evening of 29.7.65, when he returned homefrom his shop, he did not find his wife, and on inquiry he learnt about the opponent No. 1 having taken heraway towards Udaipur side, by giving her false promises of bringing happiness by marrying with her etc. Onthose allegations, he filed a criminal complaint against the accused-applicant for offences under Section 497and 498 of the Indian Penal Code, in the Court of the Judicial Magistrate, First Class, at Palanpur. Theevidence led by the complainant in the case disclosed prima facie about the accused having abducted her bydeceitful means for the purpose of having sexual intercourse, and having committed adultery with her withouther consent or connivance, so as to be liable for offence under Sections 366, 497 and 498 of the Indian PenalCode. Since the offence under Section 366 of the Indian Penal Code, was exclusively triable by Court ofSession at Palanpur, he committed him to that Court, under Section 213 of the Criminal P.C. It is against thatorder of commitment, that the accused has preferred this application to this Court.3. Of the various contentions raised in the application, the one which was urged by Mr. Sheth, the learnedadvocate for the applicant was that the learned Magistrate has no jurisdiction to frame a charge for an offenceo! adultery punishable under Section 497 of the Indian Penal Code, and then again to commit the accused tostand his trial in the Court of Session along with other two charges in absence of any valid complaint requiredto be made to the Magistrate by the complainant under Section 199 of the Criminal P.C. According to him, thecomplaint before the learned Magistrate, much though it discloses Section 497 of the Indian Penal Code,under which the accused was sought to be prosecuted, nowhere sets out any facts which constitute an offenceof adultery contemplated under Section 497 of the Indian Penal Code. The other point raised was that sinceadulterous intercourse with Jayaben was said to have taken place either at Udaipur or at Bombay, and notwithin the territorial jurisdiction of the Court of the Magistrate, it had no jurisdiction to try or commit theaccused for that offence to the Court of Session at Palanpur, as the offence of adultery was independent andagain complete by itself, and consequently it was said that the order of commitment of the accused to theCourt of Session to stand his trial in respect of that offence would be bad in law and is liable to be quashedunder Section 215 of the Criminal P.C. Now, as provided in Section 215 a commitment once made underSection 213 by a competent Magistrate...can be quashed by the High Court only, and only on a point of law. Itwould be, therefore, necessary to consider the question as to whether the commitment of the accused to standhis trial in the Court o Session in respect of an offence under Section 497 is not valid, so as to have the samequashed.4. Now it may be mentioned at the outset that the complainant makes allegations constituting an offence underSection 493 and consequently there is nothing wrong in respect of that charge. It is equally clear and overwhich there can be no dispute, that if the evidence disclosed, in a complaint before the Magistrate, any otherSureshchandra Vadilal Shah vs Shantilal Shankarlal And Anr. on 1 April, 1966 offence not referred to as such therein, a charge can no doubt be framed against the accused for that offence,and if that offence is triable only by the Court of Session, the Magistrate has to commit the accused to theCourt of Session. In that event, it is equally clear, that if any other charges are framed, though they are triableby the Magistrate himself, he can be committed in respect of those offences as well, along with the othercharge triable exclusively by Court of Session. Thus, the learned Magistrate was justified in law to commit theaccused to the Court of Session for the offences under Sections 498 and 366 of the Indian Penal Code. Evenhe would be justified to commit him in respect of the charge under Section 497, if it were otherwise proper inthe sense, that it complied with the provisions contained in Section 199 of the Criminal Procedure Code, andalso had jurisdiction to try or commit the same to the Court of Session at Palanpur. Before going to Section199 of the Criminal Procedure Code we would refer to Section 190 of the Criminal Procedure Code whichrelates to the cognizance of offences that can be taken by the Magistrates, Clause (1) thereof proceeds bysaying that "Except as hereinafter provided, any Presidency Magistrate and any Judicial Magistrate speciallyempowered in that behalf under Section 37 may take cognizance of any offence (a) upon receiving acomplaint of facts which constitute such offence;" Then there are two other Clauses (b) and (c) with which weare not concerned in the present case. The cognizance of an offence has, therefore, to be taken by theMagistrate subject to the other provisions provided in the Criminal Procedure Code. In that would comeSection 199 which provides as under: No Court shall take cognizance of an offence under Section 497 orSection 498 of the Indian Penal Code, except upon a complaint made by the husband of the woman; or. in hisabsence made with the leave of the Court by some person who had care of such woman on his behalf at thetime when such offence was committed.With the proviso thereto we are not concerned in the present case. It follows therefrom that the Magistrate cantake cognizance of an offence of adultery under Section 497, or of enticing or taking away a married woman,under Section 498 of the Indian Penal Code provided there is a complaint made by the husband of the womanconcerned. As already stated above, the complaint in respect of an offence under 8. 498 is proper and there isno dispute in that respect. It also refers to Section 497 of the Indian Penal Code, but that is said to be notenough compliance of Section 199 of the Criminal Procedure Code. The contention made out by Mr. Shethwas that the mere mention of Section 497 in the complaint cannot be enough to say that the Court wascompetent enough to take cognizance of that offence as, according to him, there was no complaint as such inrespect of the said offence as required in law. In order to appreciate what is meant by the term "complaint"used in Section 199 of the Criminal Procedure Code, we have to turn to Section 4 (1)(h) of the CriminalProcedure Code which defines the term "complaint" as meaning the allegations made orally or in writing to aMagistrate, with a view to his taking action under this Code, that some person, whether known or unknown,has committed an offence, but it does not include the report of a police officer. The term "offence" has alsobeen defined in Section 4(1)(c) as meaning any act or omission made punishable by any law for the timebeing in force. We have to give effect to the use of those terms need in Section 199, and on the basis of theirdefinitions given under the Code, it must be said that the complaint must disclose allegations showing that theperson sought to be charged with adultery, has committed an act of sexual intercourse with the complainant'swife, without his consent or connivance as required under Section 497 of the Indian Penal Code, and further,that those allegations constituting that offence are made with a view to take action against him under theCode. Those allegations may be oral or in writing before the Magistrate. It is only then that the Magistratebecomes entitled to take cognizance of an offence under Section 497 of the Indian Penal Code. The words"cognizance of an offence" in Section 199 if read along with Clause (a) of Section 190(1) of the CriminalProcedure Code and then again having regard to the definition of the term "offence" in Section 4(1)(c) we feelno doubt whatever that the complaint must set out facts which constitute an act on the part of the accused andthat act must be one made punishable by law for the time being in force viz. under Section 497 of the PenalCode as in the present case.5. It was urged by Mr. Vin, the learned advocate for opponent No. 1, as also by Mr. Nanavati, the learnedAssistant Govt. Pleader for the State, that all that Section 199 requires is a complaint from the husband of thewoman in respect of whom the offence of adultery is said to have been committed and if such a complaint ismade to the Magistrate and also when it refers to the provision of law viz., under Section 497 of the PenalSureshchandra Vadilal Shah vs Shantilal Shankarlal And Anr. on 1 April, 1966 under which the accused is sought to be prosecuted, it should be taken as enough compliance of acomplaint made by the husband in respect of that offence and even if any such omission in setting out certainfacts in that respect has been made, it would amount to nothing more than an irregularity in the complaintcurable under Section 537(a) of the Criminal P.C. provided that there is no prejudice caused to the accused.Now it is well settled, in view of Section 199 of the Criminal P.C. that a complaint in respect of an offence ofadultery alleged to have been committed by the accused must be made by the husband of that woman withwhom he is said to have committed adultery, and absence thereof would take away the jurisdiction of theCourt of the Magistrate in proceeding therewith, and in case the accused happens to be committed to the Courtof Session in respect of the offence, one can easily say that the order of commitment in that respect would bebad in law. In a case of Emperor v. Isap Mahomed (1907) ILR 31 Bom 218, the accused was tried on chargesunder Sections 363 (kidnapping from lawful guardian, ship) and 366 (kidnapping a woman) of the IndianPenal Code. At the conclusion of the evidence the Court added a charge under Section 498 (enticing a marriedwoman) of the Indian Penal Code, notwithstanding the objection raised by the counsel of the accused. Theaccused came to be convicted in respect of all the charges including the one under Section 498 of the PenalCode. In an appeal filed by the accused, it was contended that the procedure adopted was contrary to theprovisions of Section 199 and to the spirit of Section 238 of the Criminal P.C. Apart from the procedure beingfound not regular, the Division Bench of the High Court of Bombay held in that casa that the conviction underSection 498 of the Penal Code was bad in law in absence of any complaint made by the husband of thewoman in respect of whom the offence was committed. The same view was taken in a case of Emperor v.Imankhan Rasulkhan (1912) 14 Bom ILR 141. In that case, the accused was charged in the first instance withoffences under Section 366 and 379 of the Penal Code. At the beginning of the inquiry, no charge underSection 498 was formulated against the accused. When the complainant, who was the husband of the womanconcerned, was examined as a witness there were certain statements made in his deposition amounting to anoffence under Section 498 against the accused. Finally, the Court considering the evidence acquitted theaccused on charges under Sections 366 and 379, but convicted him of an offence under Section 498 of thePenal Code. In appeal the Division Bench of the High Court of Bombay held that the Court could not takecognizance of the offence under Section 498, as there was no complaint by the husband, and the statements inthe husband's deposition as a witness could not be said to be a complaint within the meaning of Clause (b) ofSection 4 of the Criminal P.C. This latter case disposes of an argument about the deposition of thecomplainant in this case for being taken in the nature of an oral complaint contemplated under Section 4(1)(h)of the Criminal P.C. In fact almost all the High Courts have taken the view that the Court cannot takecognizance of the offence under Section 497 or 498 in absence of a complaint by the husband and further thatthe statements in the husband's deposition as a witness could not be taken as a complaint within the meaningof Section 4(1)(h) of the Criminal P.C. Apart from the authorities on the point, the definition of the term"complaint" makes that position absolutely clear when it says that the "complaint" means allegations madeorally or in writing before the Magistrate with a view to his taking action under this Code against certainperson having committed the offence. In other words, a complaint, either oral or in writing, must precede thecognizance of the offence being taken by a Magistrate by reason of Section 190(1)(a) of the CriminalProcedure Code which obviously has been subject to Section 199 of the Criminal Procedure Code. Thedeposition of the complainant, therefore, being subsequent to the cognizance of an offence being taken by theMagistrate cannot serve the purpose of being called a "complaint" as defined under Section 4(1)(h) of theCriminal Procedure Code.6. Turning now to the complaint, we find no allegation whatever to show that the accused had committedsexual intercourse with his wife as required under Section 497 of the Indian Penal Code. The allegations in thecomplaint relate to the accused having come in close contact with his wife at Palanpur and then his havingenticed her away, and left Palanpur for the purpose of having sexual intercourse with his wife. Theseallegations would no doubt be enough for an offence under Section 498 of the Indian Penal Code, butcertainly they will not go to suggest, much less show, that the accused was sought to be prosecuted for hishaving committed adultery with his wife so as to be punishable under Section 497 of the Indian Penal Code.In this connection, it was attempted to be urged by Mr. Nanavati, the learned Assistant Govt. Pleader for theState, that Section 199 should be liberally construed and that the recitals in the complaint should be soSureshchandra Vadilal Shah vs Shantilal Shankarlal And Anr. on 1 April, 1966 considered that having regard to the purpose for which he had actually taken his wife away from Palanpurread with a reference to this section dealing with the offence of adultery as sufficient compliance underSection 199 of the Criminal Procedure Code. We do not agree with that suggestion much though we feelinclined to think that such, provisions of law no doubt should be liberally/construed. In our opinion, however,a mere mention of a section for which the accused is sought to be prosecuted cannot be enough unless theallegations set out in the complaint refer to the act constituting an offence under any law. What one has tolook therefore is as to whether on a broad reading of the complaint it gives a dear indication that the set offacts mentioned therein disclose the offence under Section 497 of the Indian Penal Code. We cannot go to thelength of saying, as Mr. Nanavati wanted us to go, that since the accused had enticed away the wife of thecomplainant and since both of them had left Palanpur for going towards Delhi on the night of 29.7.65, theymust have necessarily gone for that purpose to an extent that the accused had actually committed adulterywith her in the sense that he had sexual intercourse with her. Enticing away a woman or taking away a womanfor a purpose such as of having sexual intercourse with her, constitute certain type of offences and for that theaccused is committed to the Court of Session by the learned Magistrate. But an offence of adultery punishableunder Section 497 of the Indian Penal Code is a distinct offence and the person who commits adultery has gotto be shown that he had sexual intercourse with that woman, knowing or having reason to believe her to be thewife of another person, without the consent or connivance of that man. The act that becomes punishable underlaw viz., under Section 497 of the Indian Penal Code is an act of adultery with the wife of the complainant andit is only in respect of that act which amounts to an offence that a complaint from her husband is essential asrequired under Section 199 of the Criminal Procedure Code. The allegations in the complaint, there, fore,must point at that act as having been committed by the accused in respect of the wife of the complainant.Absence of those allegations would render that complaint no good so as to say that it complies with theprovisions contained in Section 199 of the Indian Penal Code, much though it does comply with regard to anoffence punishable under Section 498 of the Indian Penal Code. We are not referred to any authority sayingthat a mere reference to the section under which the accused is sought to be prosecuted would be enoughcompliance under Section 199 of the Criminal Procedure However, on the other hand, a reference was. madeto a case of Sain v. Emperor A.I.R. 1934 Lah. 945. In that case, a complaint was filed in the Court of theAdditional District Magistrate of Sialkot against Sain and others alleging that they, had abducted his wife Paroand that Sain had been having sexual intercourse with her against her will knowing that she was his wife, Atthe trial Viru gave evidence that Sain had seduced his wife, has had children by her and that he was nowresiding with her in Sialkot City. On those facts, the trying Magistrate framed charges against Bain underSections 497 and 498 of the Indian Penal Code and convicted him for the same. In appeal the order ofconviction and sentence passed against him under Section 497 alone was upheld. In a revision filed before theHigh Court by the petitioner, it was contended that a trial was illegal for want of a com. plaint by the husbandwithout which, under the provisions of b. 199 of the Criminal Procedure Code, no Court had jurisdiction totake cognizance of an offence under Section 497 of the Indian Penal Code. It was held that the complaintmade by Viru contained the allegations which covered all the ingredients necessary for a conviction underSection 497, that is to say, marriage between Mt. Taro and Viru, sexual intercourse between Mt, Taro and theaccused without Viru's consent or connivance, and knowledge on the part of Sain that Mt. Taro was Viru'swife. The complaint, however, did not mention Section 497 but it referred to only Sections 366 and 368 in theheading of of the complaint. On those facts, it was held that for the purpose of Section 199 of the CriminalProcedure Code the complaint need not specify precisely the section under which the accused is to be chargedso long as it sets forth matter which, if proved, would warrant a conviction, and a desire is expressed that theaccused be punished for what he has done. In other words, what was contemplated under Section 199 of theCriminal Procedure Code was to prevent Magistrates enquiring of their own motion into cases connected withmarriage unless the husband or other person authorised moves them to do so. Thus, what is consideredessential is the allegations made in the complaint which constitute an act amounting to an offence under anylaw and a mere mention of a section for which he is sought to be liable cannot, therefore, be enough to saythat it complies with the provisions contained in Section 199 of the Criminal Procedure Code. It appears,therefore, clear that the present complaint nowhere sets out facts which constitute an offence of adultery ascontemplated under Section 497 of the Indian Penal Code and when that is so, it does not amount to acomplaint which is required to be made by reason of Section 199 of the Criminal Procedure Code. TheSureshchandra Vadilal Shah vs Shantilal Shankarlal And Anr. on 1 April, 1966 complaint filed in the Court of the learned Magistrate was, therefore, no valid complaint in respect of anoffence under Section 497 of the Indian Penal Code be as to entitle him to take cognizance and proceedfurther and then commit the accused to stand his trial in the Court of Session in respect of that offence withtwo other offences punishable under Sections 366 and 498 of the Indian Penal Code.7. It was urged that want of a reference about the act of adultery said to have been committed by the accusedwith the complainant's wife in the complaint can at best be said to be an omission or irregularity in thecomplaint and that way having regard to Clause (a) of Section 537 of the Criminal Procedure Code, it iscurable since it has occasioned no failure of justice and no prejudice to the accused. We have taken the viewthat the complaint before the learned Magistrate does not set out any facts or make any allegations whichconstitute an act and that way an offence punishable under Section 497 of the Indian Penal Code and that,therefore, it serves no compliance with the provisions contained in Section 199 of the Criminal ProcedureCode. It is not a case of an omission of some details in the complaint in respect of an offence for which theaccused is Bought to be prosecuted. But when it does not amount to a complaint as required in law, it takesaway the jurisdiction of the Court in taking cognizance in respect of that offence punishable under Section497 of the Indian Penal Code. When that is so, it cannot be taken to be a case of an omission or irregularity inthe complaint and the question of curability under Section 937, much though that may not have occasionedany failure of justice, cannot arise. In our view, therefore, Section 537(a) of the Criminal Procedure Codecannot help the opponents in the case. In this view of the matter, the other point relating to the' question of thejurisdiction of the Court in trying the accused for an offence under Section 497 of the Indian Penal Codewould not survive.8. The order of commitment made by the learned Magistrate in so far as it relates to the. offence under Section497 of the Indian Penal Code is concerned, shall be set aside and that the rest of the order of commitment ofthe accused in respect of the other offences shall stand.Sureshchandra Vadilal Shah vs Shantilal Shankarlal And Anr. on 1 April, 1966
Rajeev Bari
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